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*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,

vs.

TYLER K. WAKAMOTO, Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-16-0000873

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000873; CASE NO. 1DTA-15-05435)

DECEMBER 13, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal arises from the Defendant Tyler K. Wakamoto’s

conviction for the offense of “Operating a Vehicle under the

Influence of an Intoxicant” (“OVUII”) in violation of Hawaiʻi

Electronically FiledSupreme CourtSCWC-16-000087313-DEC-201809:47 AM


2

Revised Statutes (“HRS”) § 291E-61(a)(1).1 The issue on

certiorari concerns foundational requirements for the admission

of testimony under Hawaiʻi Rules of Evidence (“HRE”) Rule 612,

when a witness testifies after reviewing a “Writing used to

refresh memory.”

After Honolulu Police Department (“HPD”) Officer Manueli

Kotobalavu (“Officer Kotobalavu” or “the Officer”) reviewed his

report for the second time while testifying over defense

objection, the District Court of the First Circuit (“district

court”)2 allowed the Officer to testify regarding Wakamoto’s

field sobriety test without a foundation having been laid that

his memory had been refreshed by reviewing the report. In its

October 20, 2017 Summary Disposition Order (“SDO”), the

Intermediate Court of Appeals (“ICA”) affirmed Wakamoto’s

conviction, stating that no legal authority requires the laying

1 HRS § 291E-61(A)(1) (Supp. 2014) provides:

§291E-61 Operating a vehicle under the influence of an

intoxicant. (a) A person commits the offense of operating

a vehicle under the influence of an intoxicant if the

person operates or assumes actual physical control of a

vehicle:

(1) While under the influence of alcohol in an amount

sufficient to impair the person's normal mental faculties

or ability to care for the person and guard against

casualty;

. . . .

2 The Honorable Dyan K. Mitsuyama presided.


3

of such a foundation. See State v. Wakamoto, No. CAAP-16-

0000873, at 4 (App. Oct. 20, 2017) (SDO).

In his certiorari application (“Application”), Wakamoto

reasserts a question he had posed to the ICA:

Whether the ICA gravely erred in holding that the district

court did not err in denying Wakamoto’s objection to an

officer’s testimony in an OVUII case as refreshed memory

when the officer had already reviewed his report once to

answer the prosecutor’s questions about the standardized

field sobriety test?

Legal authority requires that before testimony is admitted

pursuant to HRE Rule 612 after a witness reviews a writing while

testifying for the purpose of refreshing memory, an evidentiary

foundation must be laid establishing that the witness’s memory

has actually been refreshed.3 Therefore, the ICA erred by

indicating that no legal authority exists requiring that such a

foundation be laid, and the district court erred by admitting

Officer Kotobalavu’s testimony regarding Wakamoto’s field

sobriety test over defense objection without requiring the

proper evidentiary foundation.

Despite evidentiary error, an appellate court may affirm a

judgment of a lower court on any ground in the record that

supports affirmance. See State v. Fukagawa, 100 Hawaiʻi 498,

506, 60 P.3d 899, 907 (2002) (citations omitted). After the

3 Before the witness reviews the writing, a foundation should be laid

that the witness does not recall a fact or event and that the writing will

help the witness refresh the witness’s memory. See Edward J. Imwinkelried,

Evidentiary Foundations 466 (9th ed. 2015).


4

defense objected to Officer Kotobalavu again reviewing his

report and questioned whether he had an independent

recollection, the deputy prosecuting attorney raised the

possibility that the officer’s testimony would be admissible

4under HRE Rule 802.1(4) governing “Past recollection recorded”

if it was not otherwise admissible under HRE Rule 612. The

State of Hawaiʻi (“the State”), however, did not alternatively

argue HRE Rule 802.1(4) to the ICA or to this court, and it is

unclear whether the testimony at issue would have been

admissible on this basis. In addition, the erroneous admission

of evidence is not harmless beyond a reasonable doubt if there

is a reasonable possibility that the error might have

contributed to the conviction. See State v. Subia, 139 Hawaiʻi

62, 69, 383 P.3d 1200, 1207 (2016). In this case, the district

court specifically stated it relied in part on Officer

4 HRE Rule 802.1(4) provides:

Rule 802.1 Hearsay exception; prior statements by

witnesses. The following statements previously made by

witnesses who testify at the trial or hearing are not

excluded by the hearsay rule:

. . .

(4) Past recollection recorded. A memorandum or record

concerning a matter about which the witness once had

knowledge but now has insufficient recollection to enable

the witness to testify fully and accurately, shown to have

been made or adopted by the witness when the matter was

fresh in the witness’[s] memory and to reflect that

knowledge correctly. If admitted, the memorandum or record

may be read into evidence but may not itself be received as

an exhibit unless offered by an adverse party.


5

Kotobalavu’s improperly admitted testimony as a basis for

convicting Wakamoto — thus, the improperly admitted testimony

contributed to the conviction. Therefore, the evidentiary error

cannot be deemed harmless beyond a reasonable doubt.

Accordingly, we vacate the ICA’s November 22, 2017 Judgment

on Appeal entered pursuant to its SDO, as well as the district

court’s Notice of Entry of Judgment and/or Order

and Plea/Judgment, and we remand this case to the district court

for further proceedings consistent with this opinion.

II. Background

A. Factual Background and District Court Proceedings

In a complaint dated December 21, 2015, the State charged

Wakamoto with committing the offense of OVUII on December 2,

2015, in violation of HRS § 291E-61(a)(1). A bench trial took

place on September 20, 2016 and November 17, 2016. At trial,

HPD Officer Jesse Takushi (“Officer Takushi”) and Officer

Kotobalavu testified for the State.

According to the officers’ testimonies, on December 2,

2015, at about 2:35 a.m., on Kalakaua Avenue fronting the Moana

Surfrider Hotel, Officer Takushi conducted a traffic stop on a

vehicle he observed twice unsafely crossing a broken white line.

When Officer Takushi approached the vehicle, he observed that

Wakamoto’s eyes were red and watery and that his pupils appeared

dilated, and he noticed a strong alcoholic-type odor coming from


6

Wakamoto. According to Officer Takushi, Wakamoto’s responses

were delayed and slurred, and he could not locate his

registration paperwork. Wakamoto apparently repeatedly picked

up and dropped his license and insurance paperwork, but he did

hand them to Officer Takushi in a timely manner.

Officer Takushi testified that when Wakamoto stepped out of

the vehicle, he stated on his own accord that he “didn’t have

anything to drink,” but Officer Takushi continued to smell an

alcoholic odor. At about this point of the traffic stop,

Officer Kotobalavu, responding to Officer Takushi’s radio

request for assistance, arrived on the scene.

At the start of his trial testimony more than nine months

after the arrest, Officer Kotobalavu could not recall the

location of the traffic stop:

[By the Prosecutor:]

Q. Do you recall the location of this traffic

stop?

A. No, sir, I don’t recall at this time.

Q. Is there something that would help to refresh your

memory?

A. Yes, my report.

Q. Okay.

[Prosecutor]: And may the record reflect that

I’m showing defense counsel.

By [the Prosecutor]:

Q. So, Officer, I’m going to hand you your

police report. Just go ahead and look at it silently

and look up at me when you’re done.

A. Okay.

Q. And I’m taking the report back.

Officer, has your memory been refreshed?

A. Yes.

Q. Okay. And do you recall where the location of the

traffic stop was?


7

A. Yes.

Q. Okay. And where was that, sir?

A. Was front -- was on Kalakaua fronting the Moana

Surfrider hotel.

The record does not reflect how long Officer Kotobalavu reviewed

his report before resuming his testimony, but he testified that

he thought Wakamoto’s car was a black two-door Lancer.

Officer Kotobalavu then testified that as he spoke to

Wakamoto, he smelled alcohol and saw that Wakamoto had red,

watery eyes. He testified that Wakamoto was then directed to

walk about fifteen feet away from his car so that Officer

Kotobalavu could conduct a field sobriety test on the dry

concrete sidewalk in front of the Moana Surfrider, which was

free of debris, well lit, and did not have much foot traffic.

He further testified that before conducting the field sobriety

test, Officer Kotobalavu asked Wakamoto a series of questions

regarding Wakamoto’s health. Officer Kotobalavu also repeatedly

asked Wakamoto whether he understood his instructions regarding

the tests. As Wakamoto spoke, Officer Kotobalavu continued to

detect the odor of alcohol coming from him.

Regarding the walk-and-turn test, Officer Kotobalavu

testified that he instructed Wakamoto on how to place his feet,

the direction he should face, and where to place his arms.

Officer Kotobalavu testified that he also demonstrated the test

and that after Wakamoto got in the correct position to begin the

test, he instructed him not to move until he was told to start.


8

Officer Kotobalavu testified that before being told to start,

however, Wakamoto swayed about six inches in both directions and

started the test on his own.

Officer Kotobalavu further testified that during the walk-

and-turn test, Wakamoto raised his arms at least once about six

inches away from his body in order to keep his balance while

walking and that Wakamoto took ten steps instead of the

instructed nine, and missed a few heel-to-toes, where his heel

missed his toe by about one inch. According to Officer

Kotobalavu, contrary to instructions, Wakamoto stopped in the

middle of the test. He testified that after the ninth step,

Wakamoto appeared unsure whether he was to turn, and then took

an extra step to turn.

After testifying to the foregoing, the following exchange

occurred:

[By the Prosecutor:]

Q Okay. Is there anything that you recall as far as

his performance other than the turn and the things

that you had testified about to this point?

A No.

Q Okay. Is there something that would help refresh

your memory?

A My report.

Q Okay. And --

[Defense counsel]: Your Honor, at this time

defense would object. At this point the Officer had two

opportunities to review the document. I’m sure once

before. At this point I’m asking is the officer -- does

the officer have an independent recollection of the events,

or he’s just going off what he’s written right now? He’s

had -- I believe he has had multiple opportunities to look

at the document, and there is -- I do believe there’s a

difference between the two.


9

[Prosecutor]: Your Honor, if that’s an

issue, I understand [Defense counsel’s] point. If that’s

an issue, you know, we can make this a past recollection

recorded. I mean, this was in December of last year, your

Honor, and the officer conducts these traffic stops

routinely, so --

THE COURT: Overruled.

BY [the Prosecutor]:

Q Officer, I’m going to hand you your -- your

report. Go ahead and take that -- a look at that

silently, and then just let me know when you’re done.

A Okay.

Q And let the record reflect I’m taking the report

back.

Okay. Officer, so any other observations that

you made of the defendant during just -- just the

walk-and-turn just portion of the test?

A Yes. As he took the -- his turn, he did take one

more extra step, so he turned the wrong way, but as

he turned, it wasn’t as instructed, short, choppy

steps. He spun on his right foot to turn himself

around.

Q Okay. When you say that he turned the wrong way,

which way did he turn?

A To the right.

Q Okay. And which way did you instruct for him to

turn?

A To the left. If you took nine steps, you would

automatically turn to the left.

Q Okay. Anything else happened or any other

observation that you made during this portion of the

test?

A No.

Officer Kotobalavu then went on to testify regarding the one-

leg-stand test.

Officer Kotobalavu testified that, in performing the one-

leg-stand test, Wakamoto was required to lift either his right

or left leg about six inches from the ground, with his foot

remaining parallel to the ground, and with his hands at his

sides. Simultaneously, Wakamoto was required to look down at

his feet and count until Officer Kotobalavu told him to stop.


10

Officer Kotobalavu testified that he then demonstrated the test

and Wakamoto stated that he understood.

According to Officer Kotobalavu, however, Wakamoto also

began this test before being instructed to start. He testified

that, throughout the test, Wakamoto kept his arms raised further

than six inches away from his body to keep his balance and that

he hopped to maintain his balance and set his foot down twice,

primarily during the first twenty (20) seconds of the test. The

officer testified that Wakamoto also swayed at least three times

throughout the test. Officer Kotobalavu stopped the test after

thirty (30) seconds, and arrested Wakamoto.

During Officer Kotobalavu’s cross-examination, defense

counsel began a line of questioning regarding the specific

circumstances of the traffic stop, such as whether the vehicle

had four or two doors. After the prosecutor objected, defense

counsel explained:

[Defense counsel]: This goes to my -- the -- this

goes to the witness’s ability to recall -- recall

information. What he puts down is pertinent. I believe

that there is no independent recollection (indiscernible)

problems, and my only -- this is my opportunity to cross to

make sure -- to show proof that there are inconsistencies

in his report and in his testimony.

THE COURT: I’m going to allow it. Go ahead.

Officer Kotobalavu then explained that he had previously

testified and had written in his report that the vehicle was a

two-door, but according to HPD’s vehicle license plate search,

Wakamoto’s vehicle was a four-door. Defense counsel asked


11

Officer Kotobalavu whether he had asked Wakamoto whether he had

allergies and whether he had just finished a double shift at

work. Officer Kotobalavu also testified on cross-examination

that he remembered Wakamoto saying that he had just come from a

bar to pick up a friend and Wakamoto could have actually been

outside the car when he first approached instead of inside, as

he had earlier testified.

During additional cross-examination on the second trial

date, Officer Kotobalavu testified during cross-examination that

the space between the missed heel-to-toes may have been a half-

inch instead of an inch, as he had earlier testified. He also

reiterated that he told Wakamoto which way to turn and

demonstrated how to execute the test correctly.

Wakamoto then also testified. During direct examination,

Wakamoto testified that Officer Kotobalavu did not specify the

foot on which he needed to step first or which direction to turn

during the walk-and-turn test. Wakamoto testified that the

officer also only instructed him to keep his arms at his side.

He also testified that he was driving on the night in question

because he gave a ride home to a friend who was intoxicated, the

most direct route between the bar and his friend’s home was down

Kalakaua Avenue, and he was familiar with the area.

After considering all of the testimony, the court found

Wakamoto guilty as charged. The district court explained its


12

ruling at length. In considering the testimony, the court found

that Wakamoto’s breath smelled like alcohol, and that he had

red, watery eyes. As to the use of Officer Kotobalavu’s report

to refresh his recollection, the court stated:

It is true Officer Kotobalavu indicated sometimes he needed

to reference his report and he couldn’t remember. Granted

that this happened in December of 2015, I totally

understand that. He did indicate, though, that when he

performs these [field sobriety tests], he specifically

instructs, demonstrates, and then instructs again.

The court noted several aspects of the walk-and-turn test that

Officer Kotobalavu had testified to before reviewing his report

a second time: that Wakamoto had started the walk-and-turn test

too soon, missed the heel-to-toe by one inch at least one time,

raised his arms away from his body by at least six inches at

least one time, stopped in the middle of the test, and took ten

steps instead of the instructed nine.

The court also referenced as a basis for the conviction,

however, Officer Kotobalavu’s testimony after his second review

of his report, i.e., that because Wakamoto took an extra step,

it followed that he turned the wrong way.

The court then discussed the results of the one-leg-stand

test, and found that Wakamoto started the test before

instructed, consistently raised his arms through the test,

hopped, and put his foot down before the end of the test. The

court sentenced Wakamoto to a one-year revocation of license, a


13

minimum fourteen-hour substance abuse assessment program, and

various fines and fees. His sentence was stayed pending appeal.

B. Appeal to the ICA and Application for Writ of Certiorari

Wakamoto timely filed a Notice of Appeal to the ICA, and

presented a single argument, which he again raises on

certiorari:

The district court erred in denying Wakamoto’s

request to determine if the [standard field sobriety test]

officer was testifying from his memory or from a past

recollection recorded.

Wakamoto argued:

In this case, Officer Kotobatavu [sic] was permitted

to see his report a second time to try to refresh his

memory of Wakamoto’s [field sobriety test] over defense

objection that it was unclear if his memory was actually

refreshed or he was testifying to a past recollection for

which he had no present personal knowledge. Instead of

overruling the defense objection, the district court should

have asked, or let defense counsel ask, if his memory was

actually refreshed or not. It was error for the court not

to do, and it involved a critical piece of evidence.

The ICA rejected the challenge. The ICA indicated that there

was “no evidence, such as an admission that he relied solely on

his report or a failure to recall other details about his

arrival on the scene, to suggest that [Officer Kotobalavu] based

his testimony only on what he read in the report.” Wakamoto,

SDO at 2 (citations omitted). The ICA also stated that before

looking at his report the second time, Officer Kotobalavu

“recalled numerous details about the incident, including

Wakamoto’s appearance and odor, how he conducted and Wakamoto

performed the [horizontal gaze] test, and other aspects of


14

Wakamoto’s performance of the Walk-and-Turn test.” Wakamoto,

SDO at 3 (citations omitted). The ICA then stated, "It is

reasonable under the circumstances to infer that the [field

sobriety test] report merely jogged Officer Kotobalavu’s memory.

Wakamoto provides no authority for the contention that an

officer is required to say whether his recollection was

refreshed after looking at the report, and we find none.”

Wakamoto, SDO at 4 (emphasis added).

In his Application, Wakamoto reasserts the argument made to

the ICA:

Whether the ICA gravely erred in holding that the district

court did not err in denying Wakamoto’s objection to an

officer’s testimony in an OVUII case as refreshed memory

when the officer had already reviewed his report once to

answer the prosecutor’s questions about the standardized

field sobriety test?

(some capitalization removed). Wakamoto asserts in his

Application that “no foundation had been laid” for Officer

Kotobalavu’s testimony regarding the field sobriety test after

his second review of his police report.

III. Standard of Review

Errors on evidentiary rulings are subject to the abuse of

discretion standard unless the application of the evidentiary

rule in question can produce only one correct answer, in which

case, we review the alleged error under the “right/wrong”

standard. Kealoha v. County of Hawaiʻi, 74 Haw. 308, 315, 319–

20, 844 P.2d 670, 674, 676 (1993); State v. Dibenedetto, 80


15

Hawaiʻi 138, 145, 906 P.2d 624, 631 (App. 1995) (citing Kealoha,

74 Haw. at 315, 844 P.2d at 674). Because a witness cannot be

permitted to testify if the witness has no present recollection,

we apply the “right/wrong” standard in determining the

correctness of a ruling regarding the admissibility of testimony

under HRE Rule 612. See Kealoha, 74 Haw. at 319–20, 844 P.2d at

676.

IV. Discussion

A. Evidentiary foundation required by HRE Rule 612

As indicated above, the first time Officer Kotobalavu

reviewed his report, he testified in response to the deputy

prosecuting attorney’s question that his memory had been

refreshed before continuing to testify. The second time he

asked to see his report, defense counsel objected, raising

questions regarding whether the officer actually had a present

memory or whether he was testifying off of his report. The

court overruled the objection, and the officer continued to

testify regarding Wakamoto’s field sobriety test without stating

that his memory had been refreshed by reviewing his report.

Wakamoto asserts that the district court erred by

overruling his objection and allowing Officer Kotobalavu to

testify regarding the field sobriety test after reviewing his

report the second time because HRE Rule 612 requires a

foundation to have been laid that the Officer’s memory was


16

actually refreshed before he resumed his testimony. The ICA

stated “Wakamoto provides no authority for the contention that

an officer is required to say whether his memory was refreshed

after looking at the report, and we find none.” Wakamoto, SDO

at 4. As explained below, however, legal authority does require

such a foundation.

First, the language of HRE Rule 612 provides in relevant

part:

If a witness uses a writing to refresh the witness’[s]

memory for the purpose of testifying, either:

(1) While testifying, or

(2) Before testifying, if the court in its discretion

determines it is necessary in the interests of justice, an

adverse party is entitled to have the writing produced at

the hearing, to inspect it, to cross-examine the witness

thereon, and to introduce in evidence those portions which

relate to the testimony of the witness. . . . .

HRE Rule 612 sets out procedural requirements that must be

followed when a writing is used to refresh a witness’s testimony

while testifying. At first blush, the rule does not seem to

address whether a foundation must be laid that a witness’s

memory has been refreshed after reviewing the writing. However,

a witness’s memory is not necessarily refreshed after reviewing

a writing, and the plain language of the rule indicates it

governs a writing used to refresh a witness’s memory. In other

words, HRE Rule 612 is triggered only when a writing actually

refreshes the witness’s memory. Thus, the language of HRE Rule


17

612 alone requires that a foundation be laid that a witness’s

memory has been refreshed after reviewing a writing.

In Dibenedetto, the ICA provided further guidance on this

issue. That appeal arose out of a defendant’s conviction by a

jury for Driving Under the Influence of Intoxicating Liquor

(“DUI”) under HRS § 291-4, the law in effect at the time. See

Dibenedetto, 80 Hawaiʻi at 141, 906 P.2d at 627. A police

officer testified regarding the defendant’s performance on a

field sobriety test. See id. Based on the officer’s responses,

defense counsel argued that the officer was not testifying from

his present recollection but off of the written police report,

and moved to strike the officer’s testimony. See id. The trial

court denied the motion to strike, ruling that the matter was

for the jury to determine, see 80 Hawaiʻi at 142, 906 P.2d at

628, which was one of the issues on appeal addressed by the

ICA, 80 Hawaiʻi at 144-45, 906 P.2d at 630-31.

After reviewing the officer’s testimony, in which the

officer indicated that his testimony was based on what he had

recently read in his report, the ICA concluded that the officer

did not have a “present recollection” of the field sobriety test

at the time he testified, then addressed whether the trial court

had erred in failing to strike the officer’s testimony regarding

the field sobriety test. Dibenedetto, 80 Hawaiʻi at 144, 906

P.2d at 630.


18

The ICA then discussed HRE Rule 612, stating:

[HRE] Rule 612 indicates that a witness may use a writing

to refresh his memory for the purpose of testifying. A

writing, such as a police report, used to refresh a

witness’s memory is ordinarily not submitted into evidence.

3 J. Wigmore, Evidence in Trial at Common Law § 763, at 142

(Chadbourn rev. ed. 1970). When used to refresh the

witness’s present recollection, a writing is solely

employed to jog the memory of the testifying witness. 1 J.

Strong, McCormick on Evidence § 9, at 29 (4th ed. 1992).

Accordingly, when a writing is used to refresh a witness’s

recollection, the witness should testify from a memory thus

revived, resulting in testimony from present recollection,

not a memory of the writing itself. Id. A witness’s

recollection must be revived after he or she consults the

particular writing or object offered as a stimulus so that

the resulting testimony relates to a present recollection.

3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 612[01],

at 612-16 (1995). If the writing fails to rekindle the

witness’s memory, the witness cannot be permitted to

testify as to the contents of the writing unless the

writing is otherwise admitted into evidence. 28 C. Wright

& V. Gold, Federal Practice and Procedure: Evidence § 6183,

at 463 (1993).

80 Hawaiʻi at 144, 906 P.2d at 630 (internal quotation marks,

brackets, and ellipses omitted).

The ICA held that the question of whether the officer was

properly allowed to testify about the field sobriety test was

not a question of credibility for the jury to decide, as the

State maintained, but one of admissibility for the judge to

determine pursuant to HRE Rule 104(a), which mandates that

preliminary questions concerning the admissibility of evidence

be determined by the court. See 80 Hawaiʻi at 144-45, 906 P.2d

at 630-31. The ICA further cited to HRE Rule 601, which

provides that “[e]very person is competent to be a witness

except as otherwise provided in the [HRE].” Id. The ICA then

cited to HRE Rule 602, which provides in relevant part:

https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1006352&cite=HIRREVR612&originatingDoc=I75d03209f58e11d983e7e9deff98dc6f&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0280312269&pubNum=0134642&originatingDoc=I75d03209f58e11d983e7e9deff98dc6f&refType=TS&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)






19

Rule 602 Lack of personal knowledge. A witness may not

testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has

personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the

witness’ own testimony. . . .

The ICA further noted that the Commentary to HRE Rule 602 (1993)

defines “personal knowledge” of a witness to “mean[] that the

witness perceived the event about which [the witness] testifies

and [the witness] has a present recollection of that

perception.” Commentary to HRE Rule 602 (citations omitted).

Based on its review of the officer’s testimony, the ICA

concluded that the requisite foundation of personal knowledge

based on a presently refreshed memory had not been met and that

under the “right/wrong” standard of review, the trial court had

erred by not striking the officer’s testimony regarding the

field sobriety test. Dibenedetto, 80 Hawaiʻi at 145, 906 P.2d at

5631.

Thus, as indicated by the ICA and the authorities it cited

in Dibenedetto, and as stated in the language of HRE Rule 612,

testimony of a witness is admissible under that rule only when

5 This court cited to Dibenedetto’s analysis of HRE Rule 612 in State v.

Espiritu, 117 Hawaiʻi 127, 137, 176 P.3d 885, 895 (2008). In Espiritu, the

defendant alleged various mistakes in the admission of testimony under HRE

Rule 612, including that, on one occasion, the prosecutor never asked if the

complaining witness’s memory had been refreshed after reviewing the police

report. See Espiritu, 117 Hawaiʻi at 138, 176 P.3d at 896. This court ruled

that, despite this omission, the witness’s testimony “was nearly identical

both before and after viewing the [police] report” and thus the evidence

showed that the witness was not “merely reading from the report.” 117 Hawaiʻi at 137, 176 P.3d at 895. In this case, however, the requisite foundation

that Officer Kotobavalu was testifying from a refreshed memory after

reviewing his report is not demonstrated by his testimony.


20

the writing has actually refreshed the witness’s memory. A

witness must testify based on personal knowledge, which by

definition means the witness perceived an event and has a

present recollection of that perception. See Commentary to HRE

Rule 602. Therefore, after reviewing a writing while

testifying, testimony of the witness laying a foundation that

the witness’s memory has actually been refreshed after reviewing

the writing is required before the witness’s testimony can be

admitted under HRE Rule 612.

This conclusion is supported by HRE Rule 104(a), which

provides in relevant part: “(a) Questions of admissibility

generally. Preliminary questions concerning . . . the

admissibility of evidence shall be determined by the court. . . .”

1 Kenneth S. Broun et al., McCormick on Evidence § 9 (7th ed.

2016) (“It is a preliminary question for [the trial judge] under

Rule 104(a) whether the memorandum actually does refresh.”).

Actual refreshment of memory is a preliminary question

concerning the admissibility of testimony under HRE Rule 612,

which the court must determine prior to allowing the witness to

testify pursuant to that rule. Thus, HRE Rule 104(a) also

requires a showing that a witness’s memory has been refreshed

before testimony can be admitted under HRE Rule 612.

In addition, Professor Addison Bowman discusses HRE Rule

612 in his Hawaii Rules of Evidence Manual as follows:


21

Refreshing a witness’[s] recollection at trial is an

alternative to leading. . . . When a witness experiences a

memory lapse or omits to mention a detail expected by the

proponent, the witness can be led or refreshed. The

material used to refresh can be anything that awakens a

memory or prods a current awareness of a detail that should

be included in the witness’[s] narrative. See, e.g., State

v. Keohokapu, 127 Hawai[ʻ]i 91, 276 P.3d 660 (2012) (police

report that contained witness’[s] statements); State v.

Espiritu, 117 Hawai[ʻ]i 127, 176 P.3d 885 (2008) (police

report that recited contents of text messages the

complaining witness received from the defendant).

Typically, the refreshing document will be a prior

statement of the witness.

Admissibility of the refreshing material is of no

concern if the technique succeeds because the witness will

be instructed to read the document to herself and then will

be asked if her memory is refreshed. See State v. Lam, 75

Haw. 195, 207 n.10, 857 P.2d 585, 592 n.10 (1993) (authen-

tication of document unnecessary because it “merely serves

to refresh the witness’[s] present memory and is not

evidence”). If she answers “Yes,” then the examination

will proceed in the usual fashion . . . . If, on the other

hand, the effort to refresh fails to stimulate an

independent, present recollection in the witness, testimony

that merely parrots the contents of the document will not

be admitted over a rule 602 objection asserting lack of

personal knowledge. State v. Espiritu, 117 Hawai[ʻ]i 127,

137, 176 P.3d 885, 895 (2008) (dictum). For this

proposition, Espiritu cited State v. Dibenedetto, 80

Hawai[ʻ]i 138, 906 P.2d 624 (App. 1995) (police officer had

his report but no memory of a field sobriety test he had

conducted); compare State v. Ferrer, 95 Hawai[ʻ]i 409, 431-

33, 23 P.3d 744, 766-68 (App. 2001) (officer remembered

administering Intoxilyzer test with result “over.08”

although he needed refreshing about the accused’s “exact

score on the test”). . . .

Addison M. Bowman, Hawaii Rules of Evidence Manual, at 6-82 to

6-83 (2016-2017 ed.) (emphasis added).

Professor Imwinkelried’s text, Evidentiary Foundations, is

also in accord, indicating that “[t]he witness states that

viewing the document . . . refreshes his or her memory” before

the witness then testifies from revived memory. Imwinkelried,

supra, at 466.


22

As in Dibenedetto, a review of Officer Kotobalavu’s

testimony regarding Wakamoto’s field sobriety test after the

defense objection renders it unclear whether he was testifying

from a present recollection of what he had perceived, or whether

he was testifying from his memory of what he had read regarding

his report. Proper foundation was not laid for his continued

testimony regarding Wakamoto’s field sobriety test that Officer

Kotobalavu’s recollection had been refreshed because the trial

court did not require that he be asked whether his recollection

had been refreshed after the defense raised the HRE Rule 612

objection.

Therefore, the district court erred by overruling the

defense objection and by admitting Officer Kotobalavu’s

continued testimony without requiring a foundation that Officer

Kotobalavu’s memory had been refreshed after reviewing his

report. The ICA also erred by affirming the district court and

by indicating that no legal authority exists requiring such an

evidentiary foundation.


23

B. The error was not harmless beyond a reasonable doubt The erroneous admission of evidence is not harmless beyond

a reasonable doubt if there is a reasonable possibility that the

error might have contributed to the conviction. See State v.

Subia, 139 Hawaiʻi at 69, 383 P.3d at 1207. In this case, the

district court specifically stated it partly relied on Officer

Kotobalavu’s testimony after his second review of his report

(that because Wakamoto took an extra step, it followed that he

turned the wrong way) as a basis for convicting Wakamoto of

OVUII. Therefore, despite the existence of additional evidence

for the conviction, the evidentiary error cannot be deemed

harmless beyond a reasonable doubt.

V. Conclusion

For the foregoing reasons, we vacate the ICA’s November 22,

2017 Judgment on Appeal entered pursuant to its SDO, as well as

the district court’s Notice of Entry of Judgment and/or Order

and Plea/Judgment, and we remand this case to the district court

for further proceedings consistent with this opinion.

Earle A. Partington,

for petitioner

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

Justin P. Haspe, DPA

for respondent

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

for publication in west’s hawaiʻi reports and pacific … · see edward j. imwinkelried,...

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